PEOPLE OF MI V DAVID LEONARD SCHWARTZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 21, 2010
Plaintiff-Appellee,
v
No. 291313
Delta Circuit Court
LC No. 08-007945-FH
DAVID LEONARD SCHWARTZ,
Defendant-Appellant.
Before: MURPHY, C.J., and BECKERING and M.J. KELLY, JJ.
MURPHY, C.J. (concurring).
I concur with the majority in affirming defendant’s felon-in-possession conviction, and I
agree with the majority’s analysis and conclusion rejecting defendant’s argument that his
conviction violates the constitutional prohibition against ex post facto laws. Further, while I
agree with the majority that defendant has not established plain error regarding defendant’s
unpreserved argument that the conviction violated his state and federal constitutional rights to
bear arms, I would stop the analysis at that point and not proceed any further, as it is unnecessary
to do so.
As indicated by the majority, Const 1963, art 1, § 6, provides that “[e]very person has a
right to keep and bear arms for the defense of himself and the state.” In People v Swint, 225
Mich App 353, 375; 572 NW2d 666 (1997), this Court held that the right to bear arms under the
Michigan Constitution “is not absolute and is subject to the reasonable limitations set forth in
MCL 750.224f [felon-in-possession statute].” The Court upheld the constitutionality of the
statute “as a reasonable exercise of the state’s police power.” Id.
With respect to the Second Amendment to the United States Constitution, up until the
decision in McDonald v City of Chicago, __ US __; 130 S Ct 3020, 3050; 177 L Ed 2d 894
(2010), the Second Amendment had not been recognized as being applicable to the states, and
McDonald held that the Due Process Clause of the Fourteenth Amendment incorporated the right
to bear arms, thereby requiring the states to honor the Second Amendment. As acknowledged by
the majority, McDonald had not yet been issued when the case at bar was decided below, and
therefore, a Second Amendment challenge would necessarily have failed. Accordingly, the
landmark decision in Dist of Columbia v Heller, 554 US __; 128 S Ct 2783; 171 L Ed 2d 637
(2008), relied on by defendant, could not have been applied by the trial court. Thus, as stated by
the majority, “there was no plain error and [defendant] is not entitled to any relief.” Ante at 6.
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Nevertheless, the majority proceeds to engage in a thorough analysis of the issue.
“[T]here exists a general presumption by this Court that we will not reach constitutional issues
that are not necessary to resolve a case.” Booth Newspapers, Inc v Univ of Michigan Bd of
Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). While I recognize that the majority is not
absolutely prohibited from examining the merits of the constitutional argument, it is not
necessary to reach the issue in order to resolve the case. I would decline to address the merits of
the constitutional issue, especially in the context of an unpublished opinion and where the
majority’s analysis is arguably dicta. Accordingly, I respectfully concur.
/s/ William B. Murphy
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